Fitzgerald to tell Disclosures Tribunal she does not recollect receiving email at centre of McCabe row
Former Tánaiste Frances Fitzgerald is to tell the Disclosures Tribunal she did not recollect receiving an email alerting her to an issue with the then Garda Commissioner’s legal strategy at the O’Higgins Commission.
The Fine Gael TD will also say she was unaware at the time of Nóirín O’Sullivan’s plan to challenge whistleblower Maurice McCabe’s credibility and motivation at the commission and that she had no role in the strategy.
Ms Fitzgerald is due to give evidence to the tribunal today about the email, which she received from Department of Justice assistant secretary Michael Flahive on May 15, 2015.
The disclosure of the email last November sparked a political crisis and almost toppled the Government.
A general election was avoided when Ms Fitzgerald resigned from Cabinet.
It had been her position that she had no prior knowledge of the legal strategy adopted by Ms O’Sullivan at the O’Higgins Commission.
Mr Flahive’s email, which was passed to Ms Fitzgerald by her private secretary, alerted her that a serious criminal allegation which Sgt McCabe had always denied had been raised at the commission.
The email was for information purposes only and stated no action was required from the minister.
Although the email did not state this explicitly, the matter referred to was the Ms D case, where Sgt McCabe faced an allegation that he had sexually assaulted the daughter of a colleague.
Sgt McCabe was cleared of the allegation in 2007 following a garda investigation.
But the commissioner’s legal team was informed during consultations with senior gardaí that Sgt McCabe was unhappy that the full DPP directions in the case were not released to him.
The lawyers then sought to explore at the commission whether this may have been the trigger for Sgt McCabe making complaints against senior colleagues.
In a statement to the tribunal, Ms Fitzgerald said that while she had no recollection of receiving the email, she believed she had probably read it and put it aside to come back to later, noting the advice that no further action was required from her.
"I established the O'Higgins Commission and awaited its outcome. Other than establishing the commission I was not involved in the commission as minister,” she said in the statement.
“It would have been inappropriate for me as Minister for Justice to establish a commission of investigation and to interfere in any way with the legal strategy which might be adopted by parties to that commission, or with the evidence which might be given to the commission.
“To illustrate this point, I was not aware of the representation at the commission or indeed members/numbers of staff who would be giving evidence as witnesses at the commission, including the fact that some officials in the department were granted representation in October 2015.
“I believe it would have been totally incorrect for me to interfere with the commission of investigation, chaired by an eminent judge, or with its work.”
Ms Fitzgerald went on to say in her statement that Mr Flahive had asked her private secretary, Chris Quattrociocchi, to bring the email to her attention “for information”.
“The normal meaning of the term ‘for information’ in the Department of Justice was that the official forwarding it had indicated it was for information only, as opposed to action needed, part of official submission, or government memo, or requiring further information or follow up steps to be taken,” said Ms Fitzgerald.
“In the case of this email, the email commenced by stating that it was for information purposes only and concluded that ‘neither the Attorney [General] nor the minister had a function [in] relation the evidence of any party, including the Garda Commissioner’.
“The email made it clear that no action arose on my part, as I had no function in these circumstances.”
Ms Fitzgerald said that reading the email now, it struck her that it was “confusingly written” as it conflated two separate issues.
One was the issue that arose at the commission and the other was an issue that had arisen from the independent review mechanism, which was a review of dozens of Garda investigations conducted by a team of barristers.
The Ms D case was one of those considered during the independent review mechanism.
“I probably read the email very briefly initially, and then I would have gone back to it later and noted it,” said Ms Fitzgerald.
“Often I would scroll through an email remotely and in relation to this specific email, while I do not recollect receiving it, I believe it most likely saw the advice that no further action was required by me and thus came back to it later and noted it.
“I believe that at the time it would have struck me as being really a matter for the Garda Commissioner and indeed the commission itself.
“I was not entitled to interfere in the commission and I did not know the legal strategy being pursued by the Garda Commissioner, nor had I any role in relation to it.
“Indeed I was not aware of any legal strategy being pursued by any party to the commission and I had no knowledge of any legal strategy being pursued by the Garda Commissioner."